Thursday, January 31, 2013

[Note: After this post was sent out in the morning Dorf on Law email, I lightly edited the online version, to correct some typos, grammatical errors, and unclear phrasing that had survived the writing process.]

-- Posted by Neil H. Buchanan

My column today on Verdict discusses a welcome development in the discussion of the government's fiscal situation: the sudden realization that the "debt problem" is not such a problem after all. Specifically, forecasts now show that the debt-to-GDP ratio is going to be falling for several years, and will only return to its current level about a decade from now. That, at the very least, provides breathing room to determine whether the slowing of health care cost inflation is for real, and more generally to try to make that happen.

I am not saying that this reality is now widely understood, but it has at least reached the point where political insiders like Tim Geithner admit it out loud. The Center on Budget and Policy Priorities -- surely a left-leaning organization, but nevertheless borderline deficit scolds -- promoted the idea in a recent release. Martin Wolf, writing in the Financial Times, began his column last week like this: "The US confronts huge challenges, at home and abroad. Its fiscal position is not one of them."

If reality starts to take hold in the public debate, the argument that we need to cut everything (except military spending) because of the "entitlement crisis" (a crisis that was never a sure thing, and that was definitely never about the entitlement program known as Social Security) simply loses force. This obviously threatens the importance of the people who are deeply committed to using deficit scare tactics to bully people into believing that we need to dismantle (but not rename) Medicare, and generally to force cuts in spending on everything that actually helps people. Suddenly finding themselves on the defensive, the scolds are furious. I am on the email list of one of the most prominent deficit scold organizations, and they sent out a blast email yesterday assuring everyone that "the debt problem is not solved." They cannot allow it to be deemed a non-issue, because it is simply too useful to them.

The clown prince of deficit scolds, Paul Ryan, is clearly rattled. With his inexplicable ability to masquerade as an intelligent budget analyst still unchallenged by reality -- even after having harmed the Republican 2012 ticket, his "stature [has] increased within the party," according to a news article in The New York Times, as he "will increasingly be expected to set the tone for Republicans, particularly on fiscal issues" -- Ryan is nevertheless in full panic mode, trying to convince anyone who will listen that the debt situation is horrible, horrible, horrible. He is so desperate that he actually said that if Hillary Clinton had become President in 2008, rather than Obama, “we would have fixed this fiscal
mess by now.”

Right. Because the Republicans were extremely anxious to work with the Clintons again. Given that Obama out-Clintoned Bill Clinton, especially when it came to fiscal policy capitulation, this is one of those moments where one just has to laugh at the notion of Paul Ryan posing as a non-extremist. He complains that President Obama is "not looking to moderate, that he’s not looking to move to the middle." Apparently, the reason Romney/Ryan lost was that the public failed to appreciate the Republicans' moderation and bipartisanship. Again, right.

The best recent quote from Ryan, however, has to be this: "I don’t think that the president thinks that we actually have a fiscal
crisis. He’s been reportedly saying to our leaders that we
don’t have a spending problem, we have a health care problem. That just
leads me to conclude that he actually thinks we just need more
government-run health care." Only an ideologue who still hears his echo chamber complaining about Obamacare and death panels would try to throw that curveball. Even Ryan's own trusty charts (at least the ones that he took from credible sources, like the Congressional Budget Office) have shown for years that any scary long-term scenario is driven entirely by health care spending. Obama is (finally, mostly) right: We do not have a spending problem. We might have a health care problem.

These cracks in the monolithic view calling for austerity are, of course, welcome. Even so, it is still astonishing to see the power of the conservative, anti-government narrative. It continues to be the case that supposedly unbiased news articles take as established fact that spending is out of control, and that deficits are threatening to destroy the economy. Some of it seems trivial, even as it reinforces the false narrative. For example, in a news article last week about House Majority Leader Eric Cantor (maybe the only House Republican who is worse in every way than Paul Ryan), a Times reporter described the budget situation earlier this month as follows: "The Treasury Department was using 'extraordinary measures' to keep
paying the nation’s debts, even if, technically, the government had
blown past its borrowing limit."

"Blown past its borrowing limit"? Actually, borrowing was proceeding at the pace that Congress had set, which was slowing because of the tax increases in the Biden/McConnell tax bill. No matter. Like Professor Dorf's interviewer on NPR earlier this month, who used those exact words, the reporter apparently believes that it is uncontroversial to describe any increase in debt above an arbitrarily low level as being like the Dukes of Hazzard running whiskey past the revenooers.

Last Friday, the Times inadvertently showed how the narrative is so insidious, in a story about the confirmation hearings for John Kerry to be Secretary of State. In one of the teasers at the bottom of page A1 -- prime space to get readers interested in stories that cannot fit on the front page -- the headline read: "Fiscal Focus for Kerry." The article itself carried the headline: "Kerry Links Economics to Foreign Policy."

My first thought upon reading those headlines -- even though the headlines themselves did not directly say so -- was that Kerry had reverted to his "centrist Democrat" mode, joining in the mindless deficit bashing that surrounds him in Washington. In fact, however, the article (like the hearing itself) only briefly mentioned budget policy. Kerry did say that Congress's "first priority of business" should be to put America's "fiscal house in order." Notably, however, he preceded those words by referring to "these days of fiscal crisis, and [speaking] as a recovering member of the Super-Committee." He followed that up with this:

"But to protect our nation and make good on all our promises, as well as to live up to our ideals and meet the crisis of this moment, it is urgent that we show people we can get our business done in an effective and timely way. It is difficult enough to solve some of the problems we face, but it becomes near impossible if we ourselves replace our credibility and leverage with gridlock and dysfunction."

So, "getting our fiscal house in order" was not about too much spending, or high deficits. It was a comment from a man who had spent fruitless hours on the insane Super-Committee that had been created by the 2011 debt ceiling crisis that the Republicans had manufactured. His argument was that it harms America to have the budget process permanently gridlocked by the Republicans' constant hostage-taking.

Which means that, yes, Kerry did "link economics to foreign policy," and he did call on Congress to fix its budget mess. The narrative is so strong, however, that any discussion of "budget mess" is almost certain to be read as "too much spending." We could -- and have -- put America's fiscal house in order, as a matter of spending and debt paths. But this is another way in which the Republicans' hijacking of the narrative allows them to drive the discussion. When they break the budget process, we have to discuss fixing the budget process, which leads people to think that there is something wrong with the content of the budgets, not the process itself.

The narrative is deeply ingrained, and if it ever changes, it will take a very long time to do so. Even so, recent developments offer some minimal basis for hope. Maybe we will be some day reach the point where the anti-government subtext is not lurking in every headline about deficits and budgets, no matter how neutral those statements might be. Maybe.

Wednesday, January 30, 2013

In my Verdict column for this week, I discuss Evans v. Michigan, a Double Jeopardy case pending in the U.S. Supreme Court. The issue in Evans is whether the Fifth Amendment right against being tried more than once for the same crime precludes retrial when a judge, after the close of the State's evidence, grants the defendant's motion for a directed verdict on the basis of the judge's having mistakenly added an additional, non-existent element to the crime to be proved. In my column, I discuss the issue in Evans in the light of the Court's decision in Blueford v. Arkansas last term.

In this post, I want to consider the larger question of whether substance is more or less important to a just system than is process. The Double Jeopardy Clause provides a primarily process-oriented right to criminal defendants, although it may serve substantive values, as I suggest in my column, by preventing an oppressive government agent from repeatedly ignoring proper acquittals until a convicting jury provides the "desired" guilty verdict. The trial itself is a procedural mechanism, but the goal is much more straightforwardly substantive -- to find out the truth of what occurred so that the guilty may be punished, while the innocent are spared.

The criminal trial is not, however, exclusively concerned about the truth. For one thing, the heavy burden that is constitutionally placed on the government's shoulders reflects a willingness to tolerate inaccuracy in the form of acquittal of many guilty people in the service of minimizing the risk of convicting one innocent person. More directly threatening to the truth are evidentiary privileges that keep reliable, relevant evidence from the fact-finder, to serve some extrinsic interest (such as protecting the sanctity and security of private marital communications) and exclusionary criminal procedure rules (such as the Fourth Amendment exclusionary rule). Despite these compromises, however, we would not necessarily say that the trial itself de-prioritizes truth, but only that other values make their way into a process that is itself primarily concerned with uncovering the truth about whether the defendant did or did not commit the crime charged.

I sometimes wonder, though, whether even that much is accurate. The trial is, as a fact-finding procedure, surely superior to old practices such as trial by ordeal. But is it all about learning the truth? Years ago, Professor Dorf asked his constitutional law students the following question: if you could replace trial by jury with a machine that could tell us, with 99.999% certainty, whether or not the defendant is guilty, would you do it? My recollection (admittedly hearsay, another problem in a trial setting) is that many, if not most, students rejected the machine in favor of the jury, notwithstanding the acknowledged fact that juries are not nearly as accurate as the hypothetical machine. For those students (and perhaps for some readers), the trial is preferable to even a more-accurate device for finding out the truth. But how could that be?

One possibility is that students were "fighting the hypo" and imagining that the device wasn't really as accurate as stipulated, and that if this were so, it would be nearly impossible to know about the flaw because the device is, by definition, opaque. If students had truly believed in the accuracy of the device, perhaps they would have come out the other way.

On the other hand, because the jury deliberates in private, we don't really know in any case (or, for that matter, in the run of cases), whether juries are getting things right. We have some sobering evidence suggesting they are not, in the form of DNA exonerations, sometimes many years after eye-witness identifications led to convictions. The absolute preference for juries therefore does seem to prioritize something over the accuracy of outcomes, but what?

I would tentatively identify the "something" as the individual's access to a process in which a group of presumptively uncorrupted individuals who take their job seriously and who themselves could some day be subject to the same process listen to everyone involved (including the defendant, if he or she chooses to testify) and comes to an unbiased conclusion after deliberation. There is something familiar and comforting about the jury process, particularly when compared to a foreign-looking device. For society at large, it "feels better" to have juries deciding guilt and innocence, much in the way that it might feel better to talk to an actual person, rather than a computer robot, when calling a business on the telephone, quite apart from relative efficiency and efficacy.

If I am right about this assessment, however, then there is at least one problem. The innocent person on trial for a crime would probably choose the most accurate fact-finding device rather than risk having a human jury make a mistake. To the extent that many of us prefer a jury, then, even with the accuracy stipulation, I worry that it is because the jury makes us feel good as spectators to criminal justice, regardless of its potential inferiority as a truth-seeking device for innocent defendants. In other words, I wonder whether a preference for process over substance in this context (and maybe in others) does more for the perceived legitimacy of the system (and the comfort with which those who confidently predict they will never fall prey to it) than it does for its efficacy in protecting the innocent from falsely being convicted. In that sense, perhaps, the trial of today does bear some resemblance to trials by ordeal of yesteryear.

Tuesday, January 29, 2013

This afternoon I'll be debating Alan Gura about the future of gun regulation in the U.S. in a Federalist Society sponsored event at Cornell. I expect that we'll spend some of our time discussing state and local laws restricting public carriage of firearms, about which I wrote Verdict columns earlier this month (here and here). In addition, I expect that we'll talk a bit about current efforts to tighten federal laws. On that subject, I reproduce below a letter I recently sent to Sen. Dick Durbin, Chair of the Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights and Human Rights.

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Dear Chairman Durbin:

I write to share with you my views regarding the constitutionality of current and proposed federal laws governing private possession of firearms. I come to this task as a constitutional scholar rather than as a policy expert. I am the author, co-author, or editor of four books, over sixty scholarly articles, and hundreds of essays for general audiences, as well as a teacher of constitutional law for over twenty years.

For many years, historians and legal scholars have debated the question of how best to construe the Second Amendment to the Constitution. Some argue that it protects a right of states to maintain a militia; others argue that it protects an individual right to private possession of firearms for self-defense and other purposes. Still others have taken even more nuanced views. For example, in a 2000 article, I argued that the Constitution should be understood to protect some right of self-defense but that such a right fits awkwardly with the text and history of the Second Amendment. See Michael C. Dorf, What Does the Second Amendment Mean Today?, 76 CHI-KENT L. REV. 291, 337-38 (2000).

The scholarly debate over the Second Amendment continues, but the practical debate is over. The Supreme Court resolved the core legal issues in its decisions in District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 130 S. Ct. 3020 (2010). Even as it left some issues open for future adjudication, the Heller case clearly established two bedrock principles: first, that the Second Amendment protects an individual right to firearms possession for self-defense in the home; and second, that common-sense laws restricting but not completely banning firearms do not violate the Second Amendment. The McDonald case reaffirmed the Heller ruling, extending its framework to laws enacted by the several States as well as to federal laws.

The Heller and McDonald cases were decided by a 5-4 margin, with the Court breaking down on what may be understood as “ideological” grounds. The five most conservative Justices were in the majority for finding protection for an individual right of armed self-defense, subject to reasonable regulation. The four most liberal Justices were in dissent; they thought the Second Amendment protects no individual right of armed self-defense. Notably, not a single Supreme Court Justice—liberal or conservative—took the position that the Second Amendment protects an “absolute” right of armed self-defense.

In Heller, the majority concluded that self-defense “was the central component of the right” protected by the Second Amendment. 554 U.S. at 599 (emphasis in original). Two years later, the same majority reaffirmed the centrality of self-defense to the Second Amendment in the McDonald case. 130 S. Ct. at 3036. Accordingly, the high Court invalidated laws in the District of Columbia and Chicago that made it effectively impossible for most law-abiding citizens to possess handguns that could be used for self-defense against an assailant in the home.

Yet, even as the Court held in Heller that government may not completely ban “the most popular weapon chosen by Americans for self-defense in the home,” 554 U.S. at 629, the majority made clear that our history confirms the logical limitations on that principle: Laws that promote public safety without interfering with the basic right of armed self-defense do not offend the Constitution. The relevant discussion from Justice Scalia’s majority opinion warrants quoting in full. He explained:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. . . . For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. . . . Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Id. at 626-27 (citations replaced with ellipses).

That is not all. The Court hastened to add in a footnote that it was “identify[ing] these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.” Id. at 627 n.26. Making good on that characterization, Justice Scalia and the majority next specified another class of constitutionally valid limitations. Citing its own prior precedent and what Blackstone called the “historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons,’” the Court stated that the Second Amendment only protects those weapons “in common use.” Id. at 627.

The foregoing language makes abundantly clear that existing federal laws fall clearly on the permissible side of the line. Congress may require background checks of the sort currently codified at 18 U.S.C. §§ 921-926, because the Second Amendment permits laws prohibiting “possession of firearms by felons and the mentally ill.” Heller, 554 U.S. at 626. Congress may limit the number of firearms individuals may purchase in any given period, because the Second Amendment permits “laws imposing conditions and qualifications on the commercial sale of arms.” Id. at 626-27. Congress may ban private possession of machine guns, as it did in a law signed by President Reagan and currently codified at 18 U.S.C. § 922(o), because the Second Amendment permits prohibitions on “dangerous and unusual weapons.”

Currently circulating proposals to extend or apply existing regulatory principles fall within the heartland of the exceptions Justice Scalia’s Heller opinion recognized. Closing loopholes in the background check system keeps firearms out of the hands of dangerous persons; extending the machine gun ban to cover semi-automatic weapons and large magazines targets dangerous weapons commonly used for attacks rather than defense; and so forth. Without considering all of the details of any particular proposed legislation, it suffices to say that Congress should be guided by the core principle that the Supreme Court articulated in Heller: federal law will continue to fall clearly on the permissible side of the line, so long as it permits Americans to possess weapons commonly used for self-defense.

Before concluding, I want to address one argument that I have sometimes heard from opponents of proposals to restrict access to semi-automatic so-called “assault” weapons like the AR-15 used by the Sandy Hook elementary school killer. Because Americans possess millions of such weapons, the argument goes, they are not “unusual,” and so fall outside of the Heller Court’s exception for “dangerous and unusual” weapons. This is a clever lawyer’s argument but it rests on a fundamental misreading of the Supreme Court’s opinion.

Neither Blackstone in his Commentaries on the Laws of England nor any of the other authors Justice Scalia cited in Heller can be sensibly read to suggest that the government lacks the power to limit an especially dangerous class of firearms unless those weapons are also unusual. Nor, more importantly, should Justice Scalia and the modern Supreme Court be read to espouse that absurd position. For example, if rocket-propelled grenades were to gain popularity as private weapons, the Second Amendment would nonetheless offer them no protection, even though they could no longer be said to be dangerous and unusual.

The crucial question under the Second Amendment is whether Americans commonly possess some weapon that is suitable for self-defense. In Heller and McDonald, the Court recognized that handguns are indeed suitable for self-defense and also very popular for that purpose. If Congress fairly concludes that some category of semi-automatic weapons is not generally suitable for self-defense—or that even if it is suitable for self-defense in some circumstances, it is nonetheless highly dangerous—that conclusion should also dispose of any Second Amendment objection.

Hence, Congress should have confidence that it can consider bills containing measures like the ones contained in the President’s proposal of January 16, 2013, simply on the policy merits. The Second Amendment poses no obstacle to the proposed legislative changes, all of which fit comfortably within the framework of clearly valid existing laws.

Monday, January 28, 2013

By Mike Dorf
For now, the DC Circuit opinion in Canning v. NLRBonly has binding effect as between the parties to that case (or at least that's the Administration's position), but suppose the court's decision is affirmed by the SCOTUS. Putting aside the merits of the rule (about which I expressed some doubts in my last post), what would its scope be?

Over the course of over six decades, there have been many hundreds of recess appointments that fall outside of the very narrow window in which the Canning court allows for recess appointments. A Daily Kos blog post over the weekend suggested that Canning could backfire on Republicans by leading to the removal of recess appointees by past Republican presidents, but (as one commenter noted) this is plainly wrong: Quite apart from Canning, recess appointments expire at the end of the legislative session, so there are no more Republican recess appointees serving as federal officers (unless they were subsequently confirmed by the Senate to terms that continue, in which case they're no longer recess appointees).

Nonetheless, past Republican (and Democratic) recess appointees probably cast votes for administrative regulations that remain on the books and have the force of law. If their participation was improper and their votes were necessary for the regs going into effect, are those regs no longer enforceable? For illustrative purposes, let's imagine that Rule R was adopted by the Federal Rulemaking Commission (FRC) in 1963, pursuant to a 3-2 vote of the Commissioners, but that one of the Commissioners who voted for R was serving under a recess appointment that, we now realize, violated Canning.

Presumably, prior final adjudications that particular parties violated R cannot now be reopened. But what about R's validity going forward? Suppose Company C says it doesn't have to comply with R anymore because R was never validly enacted. If the FRC (which now is properly constituted) brings an action to enforce R against C, can C invoke the 1963 deficiency in the FRC's composition to invalidate R? Of course, the current FRC could re-promulgate R, but doing so would only cover future violations of R, not the violations that C allegedly committed in the past.

Is there some remedy that falls short of invalidation of every action that the FRC took in the last 50 years? In Free Enterprise Fund v. PCAOB, the SCOTUS declined to hold that all past actions of the Public Company Accounting Oversight Board (PCAOB) were invalid in virtue of a defect in its composition. But there the problem was that (according to the majority), the authorizing statute unconstitutionally constrained the President's power to remove members of the PCAOB. Hence, the Court said that the remedy was to invalidate and sever the unconstitutional constraint on removal, not to invalidate the Board's output. By contrast, in my hypothetical (and in all real cases that will arise under Canning), the problem is the appointment of federal officers and so the commission's output would be void from the beginning. So severability doesn't look like a solution.

Perhaps there is an alternative. In habeas corpus cases, the federal courts are generally forbidden from granting relief to state prisoners on the basis of so-called "new rules" of constitutional law. The basic idea--which is found in both the Antiterrorism and Effecitve Death Penalty Act (AEDPA) and such pre-AEDPA cases as Teague v. Lane, is that constitutional law is complicated and evolving, so state courts and state criminal justice systems should not be made to pay the high price of freeing or re-trying criminal defendants many years after a conviction, where the initial trial complied with constitutional rules that had been announced at the time of the trial. AEDPA and the case law protect a reliance interest on the part of the states.

So, could the courts fashion a Teague-style principle of non-retroactivity under which the pre-Canning output of bodies tainted with recess appointees remains valid but going forward recess appointments are not permitted? Sure, they could, but I doubt very much that they would. Part of the reasoning in Teague is that it would violate the rule against advisory opinions for the courts to issue purely prospective rulings. That's why, under Teague and AEDPA, if a habeas petitioner even seeks a new rule, the courts decline to adjudicate his claim. They do not first decide whether to rule for him and then decide whether to apply his rule retroactively to other cases.

Accordingly, I do not see an easy way out for the courts in the event that the Canning rule is affirmed. Now it's up to some enterprising researcher to figure out just how many existing rules and regs would fall as tainted by recess appointments in the event that the Canning rule survives.

Saturday, January 26, 2013

By Mike Dorf
How outraged should Democrats be about Friday's ruling in Canning v. NLRB? Quite a bit, I think, but it's not entirely clear to me that the ire should be directed entirely (or even mostly) at the DC Circuit panel that decided the case. Oh sure, it's easy to call the Republican appointees hypocrites or hacks, as the inimitable Charlie Pierce does over at Esquire. And maybe he has a point. Just as it was awfully suspicious that five conservatives discovered equal protection and renounced states' rights in Bush v. Gore, so too, one might be inclined to raise an eyebrow or two about the fact that a conservative panel waited for a Democratic Presidency to invalidate nearly all recess appointments. But even if there's more than a kernel of truth in such accusations, one can find a fair number of corresponding suspiciously timed Democratic flip-flops and more to the point, being a hypocrite or a hack doesn't necessarily make you wrong.

So, is the ruling in Canning wrong? A year ago, I wrote that the constitutional scope of the President's recess appointment power presents a hard question. That's especially true when the Senate is in pro forma session because a constitutional rule that pro forma sessions count as recesses requires a difficult line-drawing exercise. Moreover, given the need for the cooperation of the House of Representatives in formally adjourning, there is a political check on the power of the Senate to keep itself in session as a means of frustrating a President's recess appointment power. Were it not for Republican control of the House, the Senate Dems could have formally adjourned the Senate with only a simple majority.

That political fact counts for a lot but not everything because of the breadth of the DC Circuit opinion in Canning. It doesn't just say that pro forma sessions aren't recesses. It says that intra-session adjournments aren't recesses. Can that be right?

If I were starting from first principles, I might well agree with the DC Circuit. The Senate's power to confirm principal officers is a check on executive administration, while the power of the President to make recess appointments appears to be a kind of emergency gap-filler. At its core, the DC Circuit opinion in Canning makes that point. In cabining the recess appointment power, it says that a constitutional gap-filler should not be used to circumvent a legislative check on executive administration.

I nonetheless think the DC Circuit may have gotten it wrong because we are not starting from first principles. Perhaps Judge Sentelle ends up with the wrong answer because he begins with the wrong question. He begins his constitutional analysis by quoting the Supreme Court's opinion in DC v. Hellerfor the proposition that a constitutional provision should be construed by "look[ing] to the natural meaning of the text as it would have been understood at the time of the ratification of the Constitution." It's true that the Court in Heller said that, but there is so much nonoriginalist jurisprudence that has emanated from the Supreme Court--including from the Justices in the majority in Heller--that one simply cannot take seriously the idea that Heller established originalism as the official methodology of constitutional law.

Indeed, even in Heller, the Court gave extensive consideration to post-1791 evidence of the meaning and proper construction of the Second Amendment. And despite its originalist cant, so does the DC Circuit in Canning. The problem is what the court does with that evidence. The DC Circuit finds virtually no instances of intra-session recess appointments before World War II and discounts their extensive use since then. Was that discarding appropriate?

The DC Circuit cites the legislative veto case, INS v. Chadha, for the proposition that even a practice that has gained wide currency will be held invalid if it contradicts the Constitution's plain language. That's fair enough. Congress had come to insert legislative vetoes in numerous laws and the Court nonetheless found it inconsistent with Article I, Section 7. But Chadha surely doesn't stand for the proposition that the experience of the political branches counts for nothing at all. Amidst the DC Circuit's excessive reliance on the Framers in Canning, the court loses track of an important principle traceable to Hamilton in Federalist No. 82:

THE erection of a new government, whatever care or wisdom may distinguish the work, cannot fail to originate questions of intricacy and nicety; and these may, in a particular manner, be expected to flow from the establishment of a constitution founded upon the total or partial incorporation of a number of distinct sovereignties. 'Tis time only that can mature and perfect so compound a system, can liquidate the meaning of all the parts, and can adjust them to each other in a harmonious and consistent WHOLE.

Hamilton's immediate concern was federalism but his point is broader: the Framers didn't know how the Constitution would work in practice. Experience under the Constitution "liquidate[s]" its "meaning." Of course, Judge Sentelle et al are right that experience can't change the meaning of language that was and remains clear, but forgive me if I think there's ambiguity in the key words on which his opinion relies: "the" and "happen". Reading the Canning opinion, one wonders whether the DC Circuit means to render respectable former President Clinton's parsing of the meaning of "is".

None of this would matter much were it not for the filibuster. What makes the Canning opinion so deadly is the fact that it doesn't protect a legislative check on the executive; it enables a determined blocking minority in the Senate to frustrate not only the President but the majority of the country. And that, of course, is exactly what's going on here. Were it not for the filibuster and other super-majoritarian procedures in the Senate, the Democratic majority would simply confirm President Obama's nominees. The President has only had to resort to recess appointments in the first place because of the Republican blocking minority's obstinacy. Yet the Canning opinion makes no mention of filibusters or the cloture rule.

Of course, once we come to see the filibuster as the root of the problem, it's hard not to shift the blame from the DC Circuit to the Senate itself, and in particular, to the Democratic leadership. By coincidence, the Canning decision was handed down the same day that Harry Reid and Mitch McConnell cut a deal for "filibuster reform" that largely leaves the filibuster intact. It's possible to read this deal as typical Democratic Party spinelessness, but I also suspect that a fair number of Dems wanted to preserve the filibuster for some future time when they find themselves in the Senate minority. There's nothing in the deal that can or will prevent the future Republican majority from eliminating the filibuster when that day arrives, so if this was in fact the thinking of the Senate Dems, time will tell whether they misplaced their faith in the power of long-run reciprocity.

Even if reciprocity holds over the long run, however, ending the filibuster would have likely been a net benefit to Democrats. Let's say that the legislative filibuster is a wash: A Democratic blocking minority in the Senate would be roughly as likely to want to stop some legislation by a Republican president as a Republican blocking minority in the Senate would want to stop some legislation by a Democratic president. Ditto for judicial appointments, where each side has as much to gain from blocking the others' appointments as it has to lose from having its own appointments blocked. Even so, the filibuster appears to be a net gain for the Republicans on executive appointments. Why? Because, other things being equal, Democratic administrations want federal agencies to do things whereas Republican administrations, being more hostile to regulation, are fairly content to have their agencies do nothing. So, if filibustering appointments is a means to block agencies from doing things, then it is a tool that on net benefits Republicans, not Democrats.

That calculus changes if one thinks that over the long run, Democrats are more likely to be in the minority in the Senate or that that Republicans are more likely to hold the presidency. Perhaps Sen. Reid fears the latter based on reports of Republican state-level efforts to gerrymander the allocation of electoral votes. If so, I sure hope he has a plan for directly combating those efforts.

Friday, January 25, 2013

I have been extremely critical of President Obama, starting even before he took office four years ago. (Remember the controversy over the right-wing evangelist, whom Obama invited to give the invocation prayer at the first inaugural?)He chose an economic team that was, completely predictably, a retread of the team that talked then-President-elect Clinton in 1992 into dropping his plans to increase public investment, and which happily set in motion the pro-Wall Street regulatory changes in 1999 that led to the financial crisis in 2008.

As disappointed as I was during and immediately after the transition in 2008-09, however, I could never have imagined that Obama would adopt economic orthodoxy as much as he has, especially his turn toward deficit reduction in 2010. He actively defended a much-too-weak stimulus, and he pushed for fiscal contraction when there was no evidence that the economy was even close to recovering. By the time of the first 2012 presidential faux debate, I was not at all surprised that Obama still sounded like the Clintonian triangulator that he obviously was (and probably had been all along), sounding the surrender on Social Security, deficits, taxes, and so on.

Even so, Obama lived up to my prediction by adopting what I have dubbed "the last two weeks strategy" during his re-election campaign, by which center-right Democratic Leadership Council types start sounding like New Deal Democrats, counting on (among other things) money and effort from the labor unions that those politicians otherwise do so little to support (and often actively undermine). I was surprised that Obama went last-two-weeks a bit early this time around, but that was explainable by the (unjustified) negative overreaction to his first debate performance. He then ran like a defender of the New Deal and Great Society programs that the public loves.

Still, it was hardly a surprise that he actually offered to cut Social Security cost-of-living adjustments as part of his failed effort to reach a deal on taxes and spending before January 1 of this year. The deal that he did eventually sign, even though it has somehow been spun as a "win" for Obama, was simply not a good deal. His strategy of non-negotiation on the debt ceiling has worked temporarily, but we have no idea what he has in mind for the upcoming spending and tax negotiations.

How, then, might one interpret his second inauguration address? Because I have tired of watching Obama's speeches (the best of them only making the later disappointment worse), I did not watch the events on Monday of this week. To judge by the reactions, however, it was the kind of speech that should have made my liberal heart soar. All of the people who hate Obama were enraged. My favorite was Pat Buchanan's nasty comment that the reference to Stonewall was unworthy of inclusion, because the Stonewall riot was merely a "brawl." Right, and Lexington and Concord were just a bunch of louts stirring up trouble. (Note: I am not at all related to Pat Buchanan, which makes me suspect that maybe there really is a God!) We knew that the Fox-iverse (including Fox's employees who serve in Congress) would hate it, but they REALLY hated it. I guess mentioning climate change, and gay marriage, and going out of his way to respond eloquently to the makers/takers thing hit all the right notes.

More surprisingly, perhaps, has been the full-throated glee from the political left. The editor of The Progressive (probably the only magazine that I read that is to my left), actually wrote: "I Loved, Loved, Loved Obama's Inaugural Address." And as far as I can see from the clips I have watched, and the segments of the speech that I have read, there was a lot to like. Apparently, Obama even (mostly) managed to avoid sounding like a deficit scold during the speech. Another writer in The Progressive even invoked something akin to the last-two-weeks strategy: "Instead of a pean to bipartisanship and sensible, middle-of-the-road
governance, we got the fiery Obama of the closing days of his last
campaign."

Obviously, even if Obama has suddenly revealed himself to have been a closet liberal all along (or to have become one more recently), his ability to act on those views is severely restricted by political realities. House Republicans show very little sign of growing up, trying to cover their retreat in the debt ceiling battle with mindless jibes at Senate Democrats. Even a fully engaged, fully liberated Obama could only do a small amount of good.

But that still leaves us with the question of whether the openly liberal Obama whom we have recently seen is "the real Obama." Bill Clinton was famous for being able to "talk from the left, but govern from the center," and Obama's track record (even before the House changed hands in the 2010 midterm elections) suggests that he is every bit as good as Clinton at unilateral surrender on liberal goals.

Admittedly, his party has not been very helpful. I recently saw, for example, that Bob Woodward's most recent book included a claim that Obama created the Bowles-Simpson commission at the insistence of now-retired Democratic Senator Kent Conrad. (If I read the snippet correctly, Conrad threatened to hold up a debt ceiling increase, to force Obama's hand!) This at least helps to explain why Obama went forward with that ridiculous commission, even after the Republicans said that they no longer supported its creation. Nevertheless, Obama replaced Tim Geithner with Jack Lew, a politically savvy guy who is all about austerity and fiscal orthodoxy. Lew is a smart guy, and a good operative, but he seems to represent no break at all from the Rubin-Summers-Geithner run of deficit-obsessed economic advisers.

In short, I strongly suspect that the inaugural address was the last we will see of Liberal Obama. We will know that I am wrong if we see Obama actually put effort behind the various ideas that he so movingly described. Having him in office is much, much better than the alternative, but that is far different from actually carrying through on his beautiful words from Monday.

Thursday, January 24, 2013

Before I proceed to today's brief post, I wanted to point interested readers toward an extremely good series of videos and commentaries at another site. Two weeks ago, during the height of the debt ceiling craziness, I was contacted by one C.G.P. Grey, a London-based writer/producer of educational materials, who was trying to make sense of the U.S. debt ceiling debate. He had a great script nearly ready to go, and he was looking for some consultation on some final details.

I am pleased to say that I had some small part in the final result, a video (less than four minutes long) that viewers can find here. The script is available at Grey's website here. Given the thousands of words that I have written on this topic, it is downright scary to see how much can be conveyed in so few words. Not satisfied with doing me one better on the debt ceiling, Grey also managed to write a single blog post that bested me on two of my favorite topics: the inanity of the Big Coin option, and the even more depressing inanity of modern news reporting. Seriously, treat yourself to a great read! (Disclaimer: He links to one of my Dorf on Law posts, but only in passing.)

I should also mention that I was convinced of Mr. Grey's bona fides after watching an educational video that he produced some time ago, in which he explained the difference between the United Kingdom, Great Britain, England, and the whole mess of "commonwealth this" and "sun never sets on that" stuff that I have never been able to completely follow It took him all of five minutes and fifteen seconds to explain all of that, here.

Having said all of that, I will use the remainder of this post to add just a few words about the increasingly odd politics of the debt ceiling debate, here in the Washington of President Obama's second term. The Washington Post reported on the details of the House bill yesterday (which is either already law, or will be soon), describing how the debt ceiling debate has now been delayed until after the debates over sequestration (deadline on March 1, although that has already been delayed once) and preventing a government shutdown (which has a hard deadline on March 27, but which can also be delayed with another continuing resolution that changes nothing).

If I understand it correctly (and, given the odd reasoning in all of this, that is not guaranteed), the House Republicans refused to increase the debt ceiling directly -- or, Heaven forbid, repeal it. Instead, they agreed to "suspend" it until May, allowing borrowing to resume in the amounts that this same Congress approved in its current continuing resolution. When that suspension ends, the debt ceiling will be automatically updated to the level that it has then reached due to that borrowing, and the Treasury will once again be forced to resume "extraordinary measures" -- unless an actual solution is found.

How is this not an increase in the debt ceiling? Well, remember that this is a political culture in which spending increases can be called tax cuts merely by recharacterizing spending programs as "tax expenditures," and where candidates are excoriated for "voting to raise taxes" simply by refusing to vote for tax cuts. The bar, in other words, is pretty low when it comes to political charades and word games. House Republicans have now voted to eliminate the debt ceiling entirely for three months, then reimpose it at a higher level, all the while telling themselves that they have not "voted to raise the debt ceiling," which they have sworn never, ever to do.

My first thought upon reading about this was, "Hey, if that's what it takes to convince them to stop playing games with the full faith and credit of the United States, it's a pretty harmless game. Let's just do that as often as necessary." I then remembered that we have been someplace very much like here before. In the last debt ceiling hysteria, in July/August of 2011, the final deal involved another bizarre misdirection play: Passing a law that allowed the President to increase the debt ceiling, then giving the House an opportunity to pass nonbinding resolutions disapproving of the terrible thing that the President just did. Again, the House voted to allow the debt ceiling to increase, but they did so by making it look like the President had done it. Voila! Promises kept.

It is depressingly possible, however, that each of these moves has a one-use-only provision. Recall that when the more recent crisis came along, Republicans openly laughed at the President's suggestion that they do the same thing in late 2012 that they had done in August 2011. There is, therefore, no reason to think that this new move will be their preferred escape hatch next time. At that point, they will almost surely insist that doing so would be substantively equivalent to increasing the debt ceiling -- which it is, of course -- and that they will never agree to do that.

The maneuver in the Summer of 2011 was attributed to Senate Minority Leader Mitch McConnell, who also brokered the New Year's Eve tax deal with Vice President Biden. I have not seen anything to indicate whether McConnell was behind the new gimmick, but it certainly fits his style of maneuvering.

All of which suggests that Senator McConnell might be the only thing that is preventing the House Republicans from making good on their threats to bring down the economy over a meaningless promise. With McConnell up for re-election next year, and Tea Partiers already promising a primary challenge (in a state that elected the absurd Rand Paul in 2010, even though -- or perhaps because? -- they knew of his execrable views on civil rights), McConnell's skills will really be put to the test. Can he continue to invent new fig leaves to allow Republicans to bow to reality, without admitting that they are doing so? If McConnell cannot step up to the plate, who will? And if no one can, will the business interests who have backed the Republicans finally find that, when they bought the House of Representatives (and the state governments that gerrymandered them into the majority), they paid for their own demise?

Whatever happens, I am pretty sure that C.G.P. Grey will describe it more elegantly than I can.

Wednesday, January 23, 2013

By Mike Dorf
My Verdict column for this week is part 2 of my 2-parter on the 40th anniversary of Roe v. Wade. (Part 1 and the accompanying blog post appeared on Thursday of last week.) In Part 2, I consider the claim that Roe went too far, too fast--that a less sweeping decision merely invalidating the Texas law at issue in Roe would have invited a dialogue between the Court and the People, which in turn would have resulted in less contentiousness and roughly the same degree of liberalization of abortion law that Roe decreed. I argue that these claims are highly speculative at best and probably false.

Most of my argument against the too-far-too-fast hypothesis rests on two factual observations: (1) Its proponents overstate the degree to which state legislatures were in the process of liberalizing abortion law when Roe constitutionalized the subject; and (2) in the two decades since Planned Parenthood v. Casey, we have seen that legislatures given greater regulatory freedom regarding abortion do not typically respond with "dialogue." Rather, pro-life legislators (quite understandably and predictably) enact laws that make abortion as difficult as possible, going right up to the line of what the courts will uphold or even well over it, on the theory that simply making people go to court to secure abortions is costly.

But in addition to these concrete grounds for objecting to the too-far-too-fast hypothesis, I also raise a general epistemological point: Insofar as the too-far-too-fast hypothesis rests on a claim about what would have happened if we change one piece of history, it is inherently speculative. Anybody who has ever read or seen a time travel book or movie knows that even small changes can set off large and unpredictable chains of causation. I vividly remember as an undergraduate when a fellow student asked a question of one of my favorite teachers, the late political theorist Judith Shklar. The question began "what if . . . ." I don't now recall what followed the "what if" but it was something like "what if the first communist revolution had occurred in a highly industrialized country like Germany or England rather than Russia?" Shklar's answer has stuck with me pretty close to verbatim: "What is this 'what if'? There are no 'what ifs' in history. The past is determined."

The title of this post refers to a very old (like 1978 old) Saturday Night Live sketch that posed various preoposterous what-if questions, including "what if Eleanor Roosevelt could fly?". Shklar's point was that all such questions--including seemingly serious ones--are preposterous, at least from the perspective of history.

But I never understood Shklar to be making the point that "what if" questions lack all value. I understood her to be making a point about the study of the past. Shklar herself was a political scientist, not a historian, and presumably a good deal of what political science does is to make generalizations that necessarily entail some set of views about "what if" questions. Suppose you agree with Immanuel Kant, Thomas Paine and their modern supporters in thinking that democracies never (or at least rarely) go to war against one another. If so, then you will think you can say something substantive in response to a question like "would England and Argentina have fought a war over the Falklands if Argentina had not been ruled by a military junta at the time?"

Of course, anything you say will be probablistic and will lose force over time, because the path-dependence of the "butterfly effect" is real. But the whole point of a science of politics is that, at least within broad bounds, history is not simply one damn thing after another. There are patterns and causal mechanisms, albeit complicated ones. In retrospect, I realize now that Shklar was a favorite teacher of mine despite her dismissal of "what if" questions, not because of it.

To come back to the too-far-too-fast hypothesis, I want to emphasize that when I say in the column that it is highly speculative, I do not just mean that in the sense that all claims about what might happen in a counterfactual world are necessarily speculative. I also mean that we have specific reasons to doubt the particular counterfactual narrative that the too-far-too-fast hypothesis assumes.

Tuesday, January 22, 2013

By Mike Dorf
The Ken Burns et al film The Central Park Fivetells the story of how five teenage boys came to confess to a notorious crime they did not commit: the 1989 brutal rape of a woman who came to be known as the "Central Park jogger." It's a story of an injustice perpetrated, discovered and not yet corrected. The CP5, by now grown men, were exonerated in 2002 when serial killer Matias Reyesacknowledged that he had in fact committed the attack and had acted alone. Re-examination of the evidence confirmed his confession. There had never been any physical evidence against any of The Five and Reyes was a DNA match for semen found on the victim.

The Five filed a federal civil rights lawsuit against NYC and various government officials who were responsible for the investigation and prosecution of the crime. At least based on the portrayal of events in the film, the case looks like a possible winner for the plaintiffs--although the threshold for victory is high. The investigation was certainly flawed, but that doesn't necessarily mean that the defendant officers violated the plaintiffs' clearly established federal rights, which is the showing necessary to overcome the qualified immunity of the individual officers. Nor can municipal liability be established without a showing that the rights of the plaintiffs were violated pursuant to an official policy or practice--as opposed to mere sloppiness.

The City appears to be taking a scorched earth approach to the case, which explains why, more than ten years after the Five were exonerated, the civil lawsuit remains bogged down in discovery. A brief filed by the City last month is eye-opening. It seeks to compel the filmmakers (technically Florentine Films) to turn over the raw footage of interviews of the plaintiffs that appear (edited) in the film.

The brief begins fairly enough. It makes what strikes me as the correct point that federal rather than state law governs the privilege question because federal law supplies the rule of decision in the case. Thus, the filmmakers' reliance on New York privilege law is misguided. But then the brief makes two points that strike me as highly problematic.

First, the brief argues that the filmmakers are not entitled to the journalists' privilege because they came to the film siding with the plaintiffs. This strikes me as wildly off-base. Journalists almost always have some bias, whether it's one that they bring to the project or one that develops as they write (or film) the story. If having a viewpoint disqualifies journalists from the journalists' privilege, then there is no journalists' privilege.

Second, the brief argues that the defendants (in the civil lawsuit, i.e., the City etc) are entitled to the raw interview footage because it may tend to undermine the story told by the plaintiffs to the extent it reveals inconsistencies in their stories. The brief cites a number of supposed inconsistencies between the edited version and prior testimony of the plaintiffs.

This second argument is really eye-opening because at this point the plaintiffs' stories are largely beside the point. With the prosecutor and the court already having agreed that the CP5 never should have been indicted because they had nothing to do with the attack on the jogger, what difference does it make whether there were some inconsistencies in their statements? With one exception, if the case goes to trial, the core contested issue will almost certainly be what the investigators and prosecutors knew or should have known.

The exception is the underlying question of whether the interrogations of the CP5 which led to their false confessions violated their civil rights. With detectives and prosecutors having long denied that they subjected the CP5 to undue pressure, I suppose that there is a factual question of what happened in those interrogation rooms before the videotape was turned on.

But that's what makes the City's position truly disturbing. In the film, the CP5 do not say that they were beaten or threatened with violence. They say that they were held and questioned for a long time without food or sleep, and that they were told what to say so they could be released. Given that the CP5 were innocent and that what they said in their false confessions was mutually self-contradictory, their claims appear unassailable on that point. Yes, I suppose that there are factual questions about how long they were held for, what exactly was promised them, and so forth. Therefore, the City's position that the underlying raw footage is relevant seems technically accurate. But only technically so. Unless the City is arguing that the CP5 were not subject to serious pressure when held and interrogated, the precise details are of very minor concern.

Accordingly, it's difficult to read the City's brief without the sense that the City intends to maintain that the CP5 really were guilty all along, despite the overwhelming evidence to the contrary. If so, one hopes that the film will have the salutary effect of pushing the City to abandon that delusional position. With one City official now saying that the City should expeditiously settle the case, at least that's a possibility.

Monday, January 21, 2013

A certain rightwing radio 'personality' with a for-some-reason perpetually wheezy, windbaggy voice and a wide following has apparently undertaken to illuminate for us the true significance of the Martin Luther King holiday as celebrated this year: It is that the Second Amendment to the U.S. Constitution guarantees what Americans of African descent should have regarded as one of the most important civil rights of all in the 1950s and 1960s - the right to take up arms. Had they but carried firearms, this personality excitedly suggests, 'they would [not] have needed Selma.'

It scarcely needs pointing out that the ironies here simply abound. For one thing, of course, the very reason we celebrate Dr. King, his movement, and their legacy in the way that we do as a nation is that, like the Mahatma whose example he and his followers followed, Dr. King expressly eschewed violent means of attaining political rights-recognition. We do not, for example, celebrate the legacy of Malcom X with a national holiday - justly or otherwise - and that surely is owing to his adovacy of rights-vindication 'by any means necessary,' armed means among them. Perhaps the rightwing radio personality believes we should correct for that error now? (For the record, I think that we can learn a great deal from Malcom X and the arc of his life, what ever we think of the justice or otherwise of armed resistance to Jim Crow and cognate abominations that were abundant until only recently.)

A second and related irony is that, as the windy rightwing radio personality surely remembers at least as well as those of us who were children or not even born at the time, there were well known armed wings of the progressive and civil rights movements back in the day of Dr. King, as well as in the years immediately following his assassination by an armed rightwing racist. The excesses of some representatives of these wings were, of course, causes celebre among those who voted-in the conservative reaction represented first by Barry Goldwater, then by Ronald Reagan in late 1960s California and Richard Nixon in the 1968 presidential election. The likes of Goldwater, Reagan, and Nixon, in other words, presented themselves as leaders of reaction against precisely the sorts of 'Second-Amendment-vindicating' action that our perpetually breathless radio personality now purports to endorse.

Finally, a third and again related irony has to do with the aforementioned Messrs. Reagan and Nixon. A seemingly forgotten bit of the later 1960s is the degree to which serious gun control legislation actually originated in this period largely on the initiative of Republican and other conservative politicians alarmed by the rise of armed leftist groups. Nixon famously called guns 'an abomination,' and Reagan promoted gun control legislation in 1967 as Governor of California, for example, in response to armed Black Panther Party appearances at polling stations in defense of African American voting rights - this apparently in response to Republican and other rightwingers' routine harrassment of minority voters earlier in the decade. (The man who Nixon later named Justice and Reagan named Chief Justice of the U.S. Supreme Court, William Rehnquist, was of course notoriously among those accused - though, one must add, said by others to be innocent - of the latter.)

All of these ironies, I think, can be viewed as expressions of a larger irony oft-noted in recent years in connection with the rise of rightwing whackjobbery: namely, the remarkable degree to which those who call themselve 'liberals' and 'progressives' are actually today's conservatives - at least in the Burkean sense of that word - while self-labeled 'conservatives' are among the principal sources of subversion in contemporary America. That is true, remarkably enough, even where 'arming for revolution' - once a catchphrase of the left - is concerned. Anyone who doubts this should take a gander at this recent empirical study produced by a U.S. military thinktank.

Saturday, January 19, 2013

This is just a quick (by my standards) Saturday post, to make two points:

(1)I share both halves of Professor Dorf's reaction to yesterday's announcement by House Republicans that they will create three months of additional room under the debt ceiling. Because the federal government formally hit the debt ceiling on December 31, 2012, this should take us through the end of the current continuing resolution under which the government is operating (March 27, 2013). In negotiations for another continuing resolution to take us (at least part of the way) through the remainder of the fiscal year, presumably they will threaten default again.

I will just add that Mike and I have been thinking longer-term for some time now, working through the logic regarding how our framework might apply to various strategies during budget negotiations going forward. I think everyone in Washington is now presuming that something like "the Gephardt Rule" (where budgetary legislation is automatically coupled with the necessary increase in the debt ceiling) will -- either formally or de facto -- be part of all deals going forward. I'm skeptical. Just because it would be crazy not to have a Gephardt Rule is no guarantee that it will be adopted. (See, e.g., recent history.)

In any case, I do think that there is plenty to say about this, and Professor Dorf and I are planning to say a lot of it, in blog posts and Verdict columns, as well as at least one more law review piece. The Republicans' announcement yesterday might initially have seemed to make us once again irrelevant academic scribblers, but it appears that we will remain barely-relevant academic scribblers for some time to come.

(2) One of my students this semester is a former staffer for a just-retired House Democrat. He recently pointed out to me that I have been using the term "budget" in a loose fashion, and that this error has the unfortunate effect of reinforcing a bogus Republican talking point. (Are there any other kinds?) This talking point, in fact, became a big part of Speaker Boehner's announcement yesterday regarding the temporary resolution of the debt ceiling standoff.

Specifically, I have been using the term "budget" as a shorthand for the combination of spending and tax laws that are in force at any moment in time. Therefore, I have made arguments to the effect that Congress passes a budget, and if the spending and taxing in that budget do not align with the debt ceiling, then we are in the Buchanan/Dorf trilemma. It turns out that, as a formal matter, "the budget" is merely the nonbinding framework legislation that guides authorization committees in setting spending levels. We do not have the possibility of a trilemma until spending has actually been appropriated, which is what creates binding legal requirements to spend at specific levels. (Among other things, this is when impoundment becomes unconstitutional).

I might have defended myself by saying that my use of the term "budget" was merely useful shorthand, punchier and more intuitive than "appropriated spending and taxing laws." My student pointed out to me, however, that the Republicans' attacks on the Senate for "not passing a budget" are nonsense precisely because they are merely making the technical point that the Senate has not passed the thing that is actually meaningless after the whole process is over. Thus, Speaker Boehner yesterday complained that "[t]he Democratic-controlled Senate has failed to pass a budget for four years. That is a shameful run that needs to end, this year." (Side note: I did not hear the audio at that press conference, but if Boehner really did say "Democratic-controlled" and not "Democrat-controlled," I think his Speakership might soon be under renewed attack from Tea Partiers.)

The Senate has, in fact, passed appropriations laws throughout the last four years -- a fact that is demonstrated by the observation that money has actually been appropriated and spent throughout that time. (That is, there have been no government shutdowns, notwithstanding there being "no budget.") Calling the Senate out for this supposed lapse is standard playground partisan taunting from the Speaker. (Apparently, the relevant laws governing budgeting do specify that the two houses must agree on a budget, but Republicans passing the Ryan budgets in the House is not proof that they have done their job. The law -- for no particular reason -- requires a joint budget resolution. Blaming the Senate for not responding to the House's joke budgets is classic Boehner.)

In any case, extremely careful readers of this blog might have noticed that I stopped using the word "budget" loosely about ten days ago. Boehner's trash talk yesterday explains why that actually matters, at least in our current degraded political conversation. My thanks to my student for bringing this to my attention.

Mike and I are having fun with all this. The Republicans just cannot stop gift-wrapping presents for us. Thanks again, Republicans!

Friday, January 18, 2013

By Mike Dorf
As a constitutional law scholar, I often find myself in the awkward position of benefiting professionally from constitutional crises: Each time some government actor finds some new way to violate the Constitution and threaten serious pain for the country, I have a new topic to teach and write about. Thus, for the last year and a half, I have watched in a state of both dread and elation, as the possibility of an impasse over the debt ceiling both threatened the full faith and credit of the United States and shone a spotlight on my work (in this instance, co-authored with Professor Buchanan). Accordingly, I was happy for the country and disappointed professionally when the news broke that House Republicans were caving on the debt ceiling. Until I read the details.

To begin, it is possible that no deal will be reached if Senate Democrats find the terms unacceptable. Apparently the offer to raise the debt ceiling would include in the same legislation a proviso preventing members of Congress from getting paid unless a "budget blueprint" were passed. That's a quote from the Times story. It's not yet clear exactly how this would work.

In any event, let's suppose that the basic offer is accepted: Congress passes and the President signs a debt ceiling increase that buys three months and includes pressure on Congress to address the budget. The explanation would then go like this: President Obama was in a strong position on the debt ceiling because he knew that if there was a default, Republicans would be blamed, so he held the line and refused to negotiate; meanwhile, Wall Street--which is an important constituency for the GOP--was decidedly unenthusiastic about the prospect of using the threat of a default as a basis for extracting future budget cuts; thus, it was only a matter of time before Speaker Boehner (who shares the Wall Street sensibility more than the Tea Party sensibility) was able to rally his caucus behind laying off the debt ceiling and finding some other leverage point; with automatic tax increases no longer a possibility thanks to the fiscal-cliff deal, Boehner was able to persuade other Republicans that they have sufficient leverage in the ordinary budget process.

That's a pretty good story and I would believe it but for two things. The first is the inherent craziness of the Tea Partiers. All of what I just set out should have been evident a month ago, but it was only within the last week or so that it looked like there was going to be real movement. Before that, it was fairly clear that Tea Party Republicans in safe House seats didn't care very much that national polls showed Obama winning a confrontation over the debt ceiling; they would win in their districts. Indeed, even more "traditional" Republicans might be expected to take a hard line for fear that if they didn't, they would face a Tea Party primary challenge. Imagine a not-very-hypothetical district that is 50/40/10 Repub/Dem/Ind. Suppose further that only about half of the Republicans are tea-party-aligned, but that of those Republicans who vote in primary elections, more like 60% are tea-party-aligned. Thus, in a district in which tea partiers are only about a quarter of general election voters, an incumbent non-tea-party Republican could end up taking the tea party line in order to preserve his seat. This dynamic seems not to have fundamentally changed.

Second, there is the peculiar matter of the fact that the proposed rise in the debt ceiling is only for three months. If Republicans en masse were really persuaded that using the threat of default as leverage was really a terrible idea, why are they offering only a three-month increase? Why not simply offer to repeal the debt ceiling and use the ordinary budget process (plus the threat of sequestration) as the basis for negotiating budget cuts?

One possible answer is that they're bluffing. In this view, the Republicans have secretly and/or tacitly acknowledged that a default is like nuclear weapons: You can threaten to use them, but unless you're truly crazy you can't actually use them, and therefore if you're dealing with a sophisticated adversary, you can't effectively threaten to use them either. As a citizen, I hope that's what's going on here. Hoping to get something for nothing, the Republicans are dangling a mere 3-month extension, backed by the threat of debt ceiling brinksmanship at the end of the three months, but they know, and the President knows, that the threat is not credible.

But I fear that in fact the Republicans have not really taken debt ceiling brinksmanship off the table--that in their internal negotiations, there were enough truly crazy members who agreed to offer the three-month extension only because they think they have a decent chance to get what they want in those three months, but that if they don't, they are fully prepared to go back to threatening default--and doing so credibly. Like I said, as a citizen, I hope that's not what they're doing, i.e., that they're just bluffing.

If my citizenly hopes are dashed, I can console myself with the knowledge that my scholarship regarding what happens if the threat is carried out will once again be highly relevant to a critical news story.

As part of my most recent reference to some prime Friedman nonsense (in my "Fake Centrism, Part 1" post on December 27), I provided a link to a "Thomas Friedman Op-Ed Generator," which Professor Dorf had brought to my attention. It is hilarious. After I wrote that post, one of my research assistants sent me a link to the Salon writer Alex Pareene's annual "Hack List," which included a take-down of Friedman (and the much less annoying Nicholas Kristof) For those who are frustrated by the deplorable op-ed writing in America's major newspapers, the Hack List is cathartic (and addictive). (Pareene is also the author of the "Simpson-Bowles is Magic" column that I quoted in "Fake Centrism, Part 2.")

All of which actually can be a lot of fun. After I linked to the Hack List, my sense of excitement grew, as I realized that there are so many people who have eviscerated Friedman. I also learned that there is an even worse group of hacks on the Washington Post's op-ed page, as well as others at various media outlets. Mostly, it is a matter of wonderment that these people still have jobs. Seriously, if someone could explain in a satisfying way (that is, other than clubbiness and inertia) how these people are not all fired immediately, they could solve one of the mysteries of modern American life. In the meantime, it all seemed like harmless fun.

Inevitably, however, one remembers that these people -- and Friedman in particular -- are very, very influential. Just last week, after another of Friedman's cringe-inducing pro-austerity rants (this one pairing the wisdom of environmental conservatism with the faux wisdom of budgetary conservatism), I happened to make the acquaintance of a man who holds a position of some influence in Democratic circles. (He is not a White House insider, by any means, but he is the kind of person who reads the NYT and who is the target audience for Very Serious People.) He, like a letter-writer to the Times, was quite impressed by Friedman's column, content-free though it was. The damaging conventional wisdom comes from somewhere, and it remains unchallenged for a reason. Friedman plays a crucial role in that cycle.

Even so, what was the worst that one could say about Friedman? It is not exactly his fault that he has not been fired and publicly shamed. Yes, he is an incredible hypocrite, preaching to people about the need to "tighten our belts" and use fewer of the earth's resources, all the while living in his billionaire-heiress wife's ultra-mansion. Still, that makes him at worst a creep.

The problem with following the links in the various Hack List posts is that one eventually stumbles upon something truly horrifying, and about which one was previously blissfully ignorant. I had not, for example, known about CNN host Erin Burnett's shocking comments (uttered three years ago tomorrow) in response to a suggestion by Donny Deutsch that maybe the big US banks should pay a profits tax to help fund the rebuilding of Haiti. Burnett's loud, angry reaction: "Hold on, Donny! What would they do with ALL THAT MONEY down there in Haiti?!" (As one critic later put it: "I'm sure they could think of something.")

(This reminds me of a satirical TV show I saw years ago, in which a rich woman's gardener asks for a raise. The woman's response: "Oh, Jose, why do you need more money?" "To put clothes on my children's backs, ma'am." "Now Jose, I've seen the way your family dresses. It just can't cost much money to buy those things!")

So this is no longer funny, and really quite disgusting. One can argue with Deutsch's suggestion on various grounds, but Burnett's comments (which, at best, can be read in context as saying that aid money is poorly spent) are a parody of smug, self-satisfied American greed and selfishness.

That, however, is nothing compared to Thomas Friedman's low point. Some readers might have already known about this, given that it happened almost ten years ago, but it was new to me. Friedman was being interviewed on Charlie Rose's show after "Mission Accomplished" was in the books, but the "peace" was not going well. Friedman defended his enthusiastic support for the Iraq War. (Yes, I know that Friedman ultimately seemed to apologize for his pro-war stance, but he quickly reverted to saying that it could have been the democracy-building success, with freedom flowering in the desert, that he had claimed all along that it actually would be.)

Before reading further, I encourage you to watch the three-minute video: http://www.youtube.com/watch?v=ZwFaSpca_3Q. Seriously, this is something that must be seen. Readers who wish to continue to think of Friedman as a relatively harmless buffoon should turn away.

This actually made it difficult for me to breathe, after I watched it the first time. It starts out innocently enough, with Friedman's patented oh-so-serious demeanor on full display. He defends the war by making a classic Friedmanesque list of three "bubbles" that he had identified from the 1990's: the NASDAQ bubble, the corporate governance bubble, and the terrorism bubble -- the first two based on creative accounting, and the last based on "moral creative accounting." This is inane, but not really much worse than his gems like "the world is flat" or his penchant for drawing life lessons from taxi drivers in foreign cities.

But honestly, I cannot imagine anything uglier than his actual argument in that interview:

"What we needed to do was go over to that part of the world, I'm afraid, and burst that bubble. We needed to go over there, basically, and take out a very big stick, right in the heart of that world, and burst that bubble. And there was only one way to do it. ... And what they needed to see was American boys and girls going house to house, from Basra to Baghdad, and basically saying, 'Which part of this sentence don't you understand? You don't think we care about our open society? You think this bubble fantasy -- we're just gonna let it grow? Well suck on this!' OK? That, Charlie, was what this war was about. We coulda hit Saudi Arabia. It was part of that bubble. Coulda hit Pakistan. We hit Iraq because we could. That's the real truth."

How does one even begin to assess the moral degradation that this represents? He readily admits that the people who were dying in Iraq as a result of an invasion (an invasion that was justified with nothing but lies), who were guilty of nothing, and whose government was not responsible for the terrorist attacks on the United States, were being killed simply so that Americans could feel like we had made an example of some people who live in that part of the world. The seething moral certitude that Friedman conveys seals the deal. Other than tossing in a quick "I'm afraid" in the midst of that psychopathic bilge, he is clearly pleased with what had happened.

I do not know if Friedman has ever tried to recant or in any way reinterpret what he said. It does not matter. This was not an off-the-cuff comment, uttered in the immediate aftermath of the 9/11 attacks (which would still not justify it). This was the closest that Friedman ever gets to thinking things through. In his moral universe, randomly selecting a country to invade, because we could, is justified. And in his warped vision, when those American boys and girls were going door to door, presumably shooting those innocent people, our soldiers were supposedly saying on our behalf: "Suck on this!"

I do apologize to those readers who were unaware of this. There is a serious loss of innocence here. Normally, ten-year-old clips are of minor interest, at best. But this is just so sick that it permanently changes how one must view Thomas L. Friedman. He is not funny. He is not a buffoon. Re-read what he said. Watch the video again. This is moral depravity. This is not a man to be laughed at.

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The media attention on the Supreme Court has diminished significantly since June when the Court issued its opinion in the Affordable Care Act case. In the first half of 2013, however, the Supreme Court will have the opportunity in two potentially landmark cases to either further the cause of racial equality or set it back over fifty years. The stakes of these cases for this country’s racial problems cannot be overstated. If history is any guide, however, the Court is likely to reject efforts by elected and politically accountable governmental officials to further the cause of racial progress.

Mostly because of the Court’s decision in Brown v. Board of Education, most people believe that the Court often acts to protect minority groups. In fact the exact opposite is true. In the 19th century, the Court stopped Congress from ending slavery in the territories in the infamous Dred Scott case, and also overturned an 1875 federal law that would have prohibited racial discrimination in hotels, restaurants, and theaters. The latter decision tragically enabled centuries of Jim Crow and combined with the Court’s affirmation of the separate but equal doctrine led to generations of racial inequality.

More recently, and not long after the Court decided Brown in 1954, the Court relieved states of all legal obligations to cure public school segregation caused by housing patterns resulting in our schools still being largely segregated by race today. Those patterns were caused in large part by intentional governmental policies backing mortgages in white neighborhoods but not black or mixed race communities. The Court simply ignored the fact that our schools were segregated largely due to official governmental policies over many decades.

The Court has also made affirmative action more difficult, refused to end literacy tests in the early 1960’s that were disenfranchising blacks, and blocked efforts of several states to redistrict in ways to send more people of color to Congress. Many more examples of the Court rejecting progressive efforts by elected leaders could be provided. The Court has also expressly rejected any notion that public education, public housing, or a minimum standard of living is a fundamental right. In short, except for a few years during the 1960’s, the Court has far more often sided with the rich and powerful than the poor and downtrodden.

This term the Court is hearing two cases where elected officials are trying to put a dent in racial inequality. In an affirmative action case out of Texas, the Court will decide how or maybe even whether colleges and universities can use race as one of many factors to build diverse student bodies. In a case out of Alabama, the Court will decide whether Congress has the power to require states with long histories of racial discrimination to pre-clear changes in election procedures with either a special federal court or the United States Department of Justice. In both cases, the Court should step aside and let elected governmental officials try to assist people of color. Based on its history, however, the Court is likely to reject these efforts by policy makers to try and sustain our momentum towards a more racially equal society.

The 15th Amendment prohibits racial discrimination in voting. In the 1950’s and early 1960’s, many states, mostly though not all in the South, not only used literacy tests to deter blacks from voting but also physically harassed and intimidated them at the polls so that voting for African-Americans became a challenging enterprise. The Court was unwilling to prevent such abuses so Congress passed the Voting Rights Act of 1964 requiring some states, and some districts within states, to seek permission from federal authorities before making changes to election procedures (most of which tended to disenfranchise blacks and other minorities). In 2006, Congress, believing that there was more work to be done to eliminate racial discrimination in voting, reauthorized the Voting Rights Act with overwhelming majorities in both Houses.

Although some progress has been made, and yes we have elected a black President, there are still serious obstacles to people of color achieving equality in the voting booth. Voter ID laws, changes to early voting procedures, and other rules designed to limit the ability of minorities to vote were prevalent during the 2012 election. Several lower courts used the Voting Rights Act to strike down efforts by republicans to make it much more difficult for people of color to vote. There is unfortunately a long way to go before we have a color blind election system.

But even if one thinks we have reached voting equality at the polls between people of color and whites, the Fifteenth Amendment specifically provides that it is Congress that has the “power” to enforce that Amendment. Congress can repeal the Voting Rights Act at any time. If the people of the United States feel the Voting Rights Act is a bad idea or no longer needed, they can vote in members of Congress who can repeal it. Absent irrational or unreasonable Congressional enforcement of the 15th Amendment, the Court should allow the political process to work out the proper balance between state authority and voting equality when it comes to how we best eliminate barriers to equality. After all, the 15th Amendment is both a grant of authority to Congress and a limitation on state practices. It is not a grant of power to the Supreme Court to second guess efforts to achieve racial progress.

The Court will also decide this term whether the University of Texas can use race in its admissions procedures. The plaintiff who was rejected from the University of Texas claims that such a procedure violates her rights under the Equal Protection Clause of the 14th Amendment which prohibits states from denying people the equal protection of the law. Texas does not use explicit racial quotas or minority set asides but rather employs race on a limited basis to admit what it thinks is the best possible class. Texas also uses athletic ability, legacy admissions (which obviously favor whites), and intangible factors such as leadership potential to fill its class (most of which comes from a rule giving all high school students in the top 10% of their class automatic admission). Texas no more uses “race-based” admissions then it uses “athletic based” admissions. It simply takes race into account along with other criteria it deems important. Thousands of colleges and universities across the country employ similar admissions guidelines. A broad Court decision prohibiting Texas’ efforts to improve the diversity of its freshman class would have huge repercussions for colleges and universities across the country.

The 14th Amendment, like the 15th Amendment, gives Congress the power to “enforce” its provisions. If Congress believes racial preferences by university officials violate the equal protection clause, it could deprive schools of federal funding if they employ such preferences. In fact, there is already a federal law that prohibits discrimination on the basis of race at schools that receive federal funding but that law has not been used by any Administration, republican or democrat, to prohibit affirmative action. The Court should not step in to take action that the federal government has refused to take.

The original purposes of the 14th and 15th Amendments were to make sure that the newly freed slaves could vote and would be treated equally when they entered civil society not to deprive government officials of race-based tools to further equality. As late as 2006, members of Congress believed voting equality was still a major national problem and most colleges and universities think racial preferences are needed to build diverse classrooms. Voters can alter these conclusions at any time as they have done in a number of states where affirmative action is forbidden by state law (an appellate decision to the contrary out of Michigan is unlikely to be affirmed on appeal). The Constitution does not and should not limit how whites can improve racial equality for people of color and neither should the Supreme Court. Tragically, the Court has rarely acted according to that principle and is again unlikely to do so in 2013. This misreading of the Constitution and abuse of judicial power should not be ignored by this country’s media.